VOL. XL] EXCHEQUER COURT REPORTS. 231 (ON APPEAL FROM THE QUEBEC ADMIRALTY DISTRICT.) BETWEEN 19o8 THE OGILVIE irLOUR MILLS COM- } • PANY (PLAINTIFFs).. .... A PPE LLANTS' Jan. 7. AND THE RICHELIEU & ONTARIO N.A.- VIGATION COMP ANY , (DEFEND- RESPONDENTS; ANTO) .... ...... THE NORTHERN ELEVATOR COI-} APPELLANTS ; PANY (PLAINTIFFS). AND THE RICIIELIEU & ONTARIO NA- GATION COMPANY (DEFENDANTS) } RESPO\DENTS; THE CANADA ATLANTIC RAIL. WAY COMPANY (PLAINTIFFS) APPELLAxTS AND THE RICHELIEU AND ONTARIO NAVIGATION COMPANY SDE- RESPONDENTS.. PENDANTS) .. Admiralty law-Shipping—Tug and tow—Damage by :overtaking ship— • Displacement wave—Presumption as to cause of accident—Finding of trial judge. Reid, (affirming the judgment appealed from, rbported ante, p. 25), that as the essential question involved in the case was purely one of fact, there being no presumption one way or the other as to how the accident opeurred, there was. no reason to disturb the finding of the trial judge. APPEAL from a judgment .of the deputy Local• 'Judge of the Quebec Admiralty District., •
232 EXCHEQUER COURT REPORTS. [VOL. XYZ. 1908 The facts are stated in the report of the judgment at THE first instance, ante, p. 25. OGILVIE FLOUR 11IILLS .November 5:h, 1907. Co. T v H . E The argument of the appeals was now beard. RICHELIEU AND ONTAEIO E. Lafleur, K.C., and C. A. Pope for appellants. NAVIGATION A. R. Angers, K. C., and A. E. de Loririer, K.C., for res- Reasons for polluent.. Judgment TILE JUDGE OF THE EXCHEQUER COURT now (January Til), 1908) delivered judgment. These are appeals from the decrees entered in the Quebec Admiralty District, on the 31st day of May, 1907, by Mr. Justice Dunlop, whereby he dismissed the plaintiffs' actions with costs. It appears that the barge Huron laden with wheat in tow of the tug Ida grounded on the south side of the Soulanges Canal and was injured while the steamship Hamilton was passing the Ida and Huron. On a signal from the Hamilton which, being a passenger steamer, had a right to pass the tug and tow under proper conditions, the-Ida with her tow left the fair-way of the Canal and took up a position on the south side thereof, but without stopping. Under the circumstances proved in the case it must, I think, be taken to have been agreed upon between the Ida and the Huron on the one side and the Hamilton on the other, that the Hamilton should pass the former in the manner mentioned. That of course made it necessary for the Ham-ilton to pass the Ida and the Huron at a greater rate of speed than would have been required if the latter had come to a standstill, but that did not relieve either from their proper responsibilities. It was for the Hamil- ton to pass as slowly and as carefully as possible and for the Ida and the Huron to take all proper precautions against any injury or accident while the Hamiltcn was passing. Now it appears to me that the accident that did happen,
VOL. XI.] EXCHEQUER COURT REPORTS. viz. : the grounding of the Huron with the resu't that she was so injured as to founder shortly afterwards, is equally consistent with the view that the Hamilton passed too near or at too great a rate of speed and with the view that the Ida and the Huron were not properly navigate], but that the Huron was put upon the south bank of the canal_ through the inexperience or want of care of the mcii at her helm. So that in my view of the case there is no presumption one way or the other as to how the accident happened. In so far as the Hamilton is cerned it. is a pure question of fact to be found upon the evidence as to whether she passed the Ida and the Hieron in a prudent and careful manner. That fact the learned Judge who heard the case has found in favour of the Hamilton and I see no reason why I should disturb his finding. The appeals will be missed with costs. Judgment accordingly. Solicitor for Appellants: Lafleur, McDougall and Macfarlane. Solicitors for Respondents : Angers, de Lorimier and Godin. 233 loos THE OGr IXI E r+L~~!R f ILLS C,° O ' RICHE LIEU AND ONTARIO NAV Co. Reasons for Judgment. con- dis.
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